Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <>
Date: Wed, 29 Dec 2004 22:27:26 -0500

Russell McOrmond wrote:
> On Tue, 28 Dec 2004, Ben Tilly wrote:
> >
> > Furthermore there is nothing intrinsic in the reasoning for why we
> > have patents that suggests it should only apply to hardware.  The
> > fact that it does can be seen as just an accident of history.

No, it was an essential precondition for the establishment of
patents in the first place.  Though putting it in the relative
terms of "hard-" vs "soft-" ware is not properly informative with
respect to what the distinction really is.

>   It isn't about only applying to hardware, but the need to check for each
> subject matter class whether the first principles that justified patent
> policy still hold.
>   a) will it provide incentives for innovation, or stifle innovation.
>   b) is the embarrassment of a patent greater or lesser than the potential
> loss of an "invention" due to secrecy or other lack of disclosure.

This is analysis that we use in discussion with policymakers
until they can be convinced to return to more basic first
principles that used to be ordinary common sense.  In actual
fact, software is in a pure category that is appropriately simply
excluded from patentability at the outset, not according to
economic analyses or tests of novelty, etc.

>   Not including economic analysis of subject matter in the patent acts was
> a huge oversight, and one which we as a society must fix in order to
> reduce further embarrassment.

Fair enough, but I think in the end the truth will prevail in
such a fashion that building economic analysis into the law will
be understood as secondary to the basic reason.

> > Likewise in a computer with a piece of software, there has been
> > an internal physical rearrangement.
>   Just as new thoughts in the brain can be claimed to have a different
> physical arrangement.  This is totally unconvincing to me, and to be
> honest I have never been able to respond to this claim as it seems
> to totally ludicrous to me.
>   The idea that a computer with different software in it is a "new
> machine" is something I can argue against as well as I can argue
> against someone who truly believes the world is flat.
>   Can anyone else come up with a response to this?

Yes, but it's not the response that people are listening for.

The issue is not "hard" vs. "soft" -- it's concrete vs. purely

It's important to understand the meaning of "pure" -- pure
abstractions are abstractions that hold regardless of empirical
instantiation.  Logic and math are both pure bodies of knowledge
that are utterly independent of empirical instantiation.

A = B
B = C
ergo A = C

holds absolutely, regardless of what A, B and C are in the
empirical world.  Logic is ideal and pure.

1 + 1 = 2

holds absolutely, regardless of what things we are adding.  Math
is ideal and pure.

Physical laws refer to empirical reality.  They are also excluded
from patentability, but for a slightly different reason: because
they are just laws, not particular implementations.  So:

e = mc^2

may hold absolutely (we'll see -- empirics is all about
induction, so we don't really know in any ideal sense, the way we
know logic or math); but it refers to empirical things, energy,
mass and the speed of light.

In this way, physical laws are abstract, but not pure.

A patentable process may represent certain physical law, but it's
the discovery of a new concrete way to use those physical laws
that's covered, not the physical laws themselves.

The point about software, however, is about *pure* abstraction.

How do you address this with respect to what Ben has asserted? 
It is somewhat simple, once you think it through.

Software is concrete in the wrong sense for what we're
considering here.  It is concrete like written words are
concrete, not like a natural causal process is concrete. 
Software, or more precisely, a logical algorithm, is not concrete
in itself.  Logical algorithms just happen to be expressed in
concrete form, just as words on a page represent ideas that are
not concrete, in a concrete written form.  That is, software is a
representation of pure abstraction, just as written
representations of logical and mathematical principles are.

The point is, if a process presented for patenting incorporates a
generic logic device, then anything, in any form, whether written
code, compiled code, circuitry, FPGAs or whatever, anything that
acts as instructions for that generic logic device, is inherently
abstract logic -- because that what the generic logic device is
designed to perform.

On the other hand, if there is a new mechanical, chemical or
other causal, concrete, empirical means by which those
instructions may be rendered to the logic device executing those
instructions, then that concrete discovery merits a patent -- but
not the abstractions that are expressed in that medium.

How do you tell the difference?  If the concrete component (which
may be patentable) is providing instructions for a generic logic
device within the process as a whole, then the instructions
represented by that concrete component are inherently pure and
abstract, and are not patentable as such, even if the concrete
means of making that representation possible is patentable.

This is why I think a simple policy solution for the problem of
software patents would be a simple requirement that patent
applications include a statement that the process claims do not
include abstract instructions provided to a generic logic device,
and if they do, those abstract instructions are not covered. 
That would do the trick pretty handily.  This would make it
really easy for examiners, and would provide simple means for
correcting any mistakes that occur, by stating up front that
anything that can be shown to be instructions for a generic logic
device are not patentable.  That sort of policy would result in
us not having courts trying to draw distinctions without
sufficient principles expressed in the law, and feeling compelled
to address matters largely with respect to the interests of the
direct parties in a suit.

> > I do not believe that I started or ended with the conclusion that
> > patent lawyers wanted a new type of monopoly.

< SNIP >

> > It is true that the line of reasoning was intended to result in a
> > specific conclusion (that if you accept patents, there is no obvious
> > reason to say that you shouldn't have software patents), but the
> > intention has no bearing on whether the reasoning is valid.

Ben, you have accepted a change whereby patent lawyers have
started asserting numerous misguided ideas that basically come
down to the notion that what's novel, nonobvious, etc. must be
patentable.  But in fact certain things were excluded at the
outset, regardless of how innovative they might be.  If we had
not excluded pure abstraction, patents would never have been
established in the first place.  A king giving one person an
exclusive right to a pure abstraction would have been such an
affront to plain reasonableness, that that would have been just
the most direct demonstration to all those privileged enough to
be engaged in any form of science, of that king's tyrannical

It's really the same thing now.

> BTW:  There is another argument we have all heard embedded in there, which
> is that any opposition to information process patents is really opposition
> to all patents.

I don't think that's a necessary position at all; a basic
distinction needs to be brought back into the discourse, is all.

But I do think that the ramifications for patent policy of
ubiquitous computers and coding, do have to be acknowledged by
those of us who understand that software is not appropriate for
patenting.  For one thing, since many concrete processes that
have been patented and patentable can be done anew by code
directing a generic logic processor to control various attached
devices, those preexisting patents do become less worthwhile.



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